Monday, March 28, 2011

Heparin Daubert Rulings

Some interesting Daubert rulings recently came out of the Heparin MDL. We are involved in the litigation, so we cannot say much. Here are some highlights from the decision in In re Heparin Prod. Liability Litigation, MDL No. 1953 (N.D. Ohio March 21, 2011):

-- The plaintiff's microbiologist expert was not permitted to testify "about other instances of Chinese products being tainted, adulterated or contaminated, such as cough syrup and dog food. His sparse and random anecdotal knowledge does not qualify him as an expert about specific problems involving Chinese suppliers." Slip op. at 8. He was also foreclosed from testifying "that the conduct of Defendants indicated that they 'consciously disregarded' the welfare of patients receiving their products." Id. at 10.

-- What would a product liability case be without ubiquitous plaintiff's expert Dr. Parisian? Answer: fairer and better. The Heparin MDL Judge did permit Parisian to testify about some things, but dropped an interesting footnote: "I assure all counsel that I will take whatever steps I deem appropriate and necessary to restrain the not uncommon impulse of some witnesses, including some expert witnesses, to elaborate impermissibly on their answers. I remind counsel, though, that they need to carefully frame their questions so they do not invite such elaboration." Slip op. at 12 n. 2. Those are general comments, but they reside in the section on Parisian. The Judge also held that Parisian could not testify about:

* "medical or physiological causation issues"

* "a narrative history of Heparin contamination, which must be presented through direct evidence"

* the "ultimate question" that the defendant's "monitoring, quality control measures, or recalls were ineffective or inadequate."

* "the reasonableness of the Defendants' conduct"

Slip op. at 13-15.

-- The plaintiffs sought to bring in an 'expert" who would tell the jury that "China is a risky place from which to acquire source materials," that there is a "cultural phenomenon within the Chinese business environment, such as intentional counterfeiting, 'quality fade,' 'savings culture,' show and 'shadow' factories and other manufacturing 'games or tactics,'" etc. Slip op. at 16. This expert claimed that "he can 'see beyond the facade in China' in a way that others cannot." Id. at 17. Pause and take all that in for a moment. Now watch the court do its work: the expert was "not qualified to offer opinions about Chinese cultural norms, behavior and business conduct," such opinions "are neither reliable nor relevant to the issues in this case," and, even if they were relevant, the "slight probative value his opinions might have is substantially outweighed by the risk of unfair prejudice." Slip op. at 17-19.


bmartinmd said...

So is it correct to assume then (if you can answer) that the crux of the Baxter-heparin litigation will rest on what the company should have done to ensure that its Chinese raw materials weren't tainted? Given that the specific contaminant, OSCS, was a heretofore unknown contaminant, how would it be possible for Baxter (or its heparin supplier) to police for it? Or is it just a matter, argue the plaintiffs, of knowing when you're dealing with "reputable" Chinese suppliers?

BUT, you might counter, obviously not everything that comes of out China is dangerous, so how/when should a US company know with whom to do overseas business? (And especially when that Chinese company has its own set of potentially murky suppliers.) I'm not necessarily a fan of Baxter (ie, your presumptive client), but it seems like a very difficult argument for the plaintiffs in this era of undeniable globalization. (Okay, it's a difficult argument outside of a sympathetic jury.)

Ron Miller said...

It is probably best we don't pretend that these cases are solely about whether buying from China is unsafe. I think there are more important issues and this question is actually more nuanced than maybe the post and this comment suggest.

And I disagree with bmartinmd that juries are going to jump on the buying from China is inherently unsafe argument. Juries are not dumb and they are not ruled by xenophobia. They really aren't.

bmartinmd said...

A clarification here. My final parenthetical aside should not be construed as maligning juries for their stupidity or xenophobia (that was quite an inference, Ron Miller!). Rather, I would suggest that juries--being composed of feeling human beings--can be very sympathetic to the injured (and especially when that injury involves death), and that that sympathy often trumps academic arguments when it comes to a verdict. Certainly THAT observation hasn't been missed by personal-injury lawyers. In fact, isn't that what they depend on?

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